July 17, 2012

Host: Ted Simons

Phoenix Coyotes Arena Deal Referendum

Glendale City Attorney Craig Tindall explains why the city rejected petitions calling for a referendum on the City’s arena lease deal with a potential buyer of the Phoenix Coyotes, and where the City goes from here.

Ted Simons: Good evening. Welcome to "Arizona Horizon." I'm Ted Simons. The city of Glendale has rejected petitions filed by city residents who are trying to stop a deal approved by the city council to lease the Phoenix Coyotes arena to a potential buyer of the team. The city claims the petitions were not valid, they were filed late and a number of signatures was insufficient. Here with more is Glendale City Attorney Craig Tindall. Good to have you here. Thanks for joining us.
Craig Tindall: Thank you Ted, it’s great to be here.
Ted Simons: Before we get to these petitions and another issue regarding these petitions, the deal with the Jameson group looking to buy the Phoenix Coyotes, the lease agreement deal that the City Council passed, has that been signed?

Craig Tindall: It hasn’t been signed yet. People need to remember this is a deal that involves not just the city and new arena manager but the NHL and team owner. That part of the transaction is very complex all by itself and needs to be taken care of by those two parties. So right now they are focusing on that. Once that gets far down the line and ready to go we'll turn back to ours and get ours signed and finalized and ready to go.

Ted Simons: Ok, so that has to happen first before that deal gets signed?

Craig Tindall: That will happen basically together but they don't always move in sync.

Ted Simons: Ok, let's talk about the petitions regarding the group trying to overturn the city council’s lease agreement. Why were those petitions refused?
Craig Tindall: Well, the primary reason is that it was too late. The statute requires that the petitions be turned in 30 days after the legislative act. There's an exception in the statute but it doesn't apply in this case. So the petition, the committee who was fostering the petitions turned them in about three days late. Then when they turned them in they didn't have a sufficient amount of signatures. The signatures are calculated for referendums on a particular city-wide election. That would have been our election in 2008. So calculating using that number they didn't have a sufficient number of signatures.

Ted Simons: Talk about the deadline first. The group is saying that the paperwork was not available until a few days after the city council's vote so it's for the fair to say the 30 days starts with the vote as opposed to when the paperwork was available.

Craig Tindall: Well, that's the exception I mentioned before. If you come in and fill out your application for what's called a petition serial number, if it's not available at that point in time then you do get a grace period until it's available and can be provided. So when our ordinance was passed there was a few days while it went through the standard process to be signed, but the petition, the political committee that was fostering the petitions had not come in and ask for their serial number. They didn't do that until several days after it was available. So it's the statute is meant to provide an opportunity for individuals to have a little more time if the city has not done what it needs to do. When they came in to get their petition serial numbers the ordinance was available to them, so the time ran as of the legislative enactment.

Ted Simons: So it's up to them to come in and make sure the city is doing what it's suppposed to do?

Craig Tindall: No. What could have happened, because after an ordinance is enacted it's routed through several people to get signatures on it, becomes official and is filed with the clerk. Normal process takes three, four days. That's what it took in this case. If they ask for a petition serial number the people could have walked down the hall and could have gotten signatures right then. And they could have made it available to them at that point in time. So again, it's meant to provide a grace period if when someone comes in to do the complete application process it's not available. And again, they came in later when it was available to them. So they don't have any grace period.

Ted Simons: Back to the number required signatures
Craig Tindall: Right.
Craig Tindall: Who decides--, I think you touched on this. But give us a better explanation of who decides and what is the determining factor of how many signatures are needed for something like this and was that communicated to this group?

Craig Tindall: Well actually the Arizona constitution decides that. And what the constitution says for a referendum you need 10% of a vote. Along with the constitution, the legislature has passed statutes that implement the process of referendum. Those statutes for referendum purposes say it's the last city-wide election. We are a city of districts. So we have one council member, the mayor, who is voted for city-wide. That's our last city election, which would have been when she was last selected, which was 2008. So the statute says 10% of the votes that occurred in that election determines the number of signatures on the ballot.
Ted Simons: Was that something communicated to this group?
Craig Tindall: When you come in to get a referendum packet, you are given a whole lot of information including all the statutes and the constitutional provisions and things like that, so it's pretty clear in there. Now, there's a bit of difference in another similar type of process that isn't keyed on a city-wide election, so that was probably the source of their confusion. But nonetheless, it's pretty clear.

Ted Simons: That information regarding the summary, that was a problem as well as far as what the city saw. The requirements regarding a written summary. Those are available and provided as well?
Craig Tindall: And that's actually right on the application process but the statute is specific too. When you fill out an application you need to provide a summary. A lot of times called a 100 word summary because it has a 100 word limitation. If you haven't provided that you haven't completed your application package. So that is another problem and I didn’t mention that at first. But you're right, that is another problem.
Ted Simons: How long do they have to challenge the fact that they can't challenge?
Craig Tindall: They have five days after our letter went out. Our letter went out on Monday, so you count starting with Tuesday and five days from Tuesday.

Ted Simons: Alright. There's another referendum initiative process going on regarding the city sales tax. This is a big one. This would affect city services quite a bit, however, those petitions to reverse this sales tax increase, those petitions were denied as well. Why were those refused?

Craig Tindall: It’s a different process. An initiative is different than a referendum. A referendum essentially is over turning a law that's been passed, a citizen referendum, legislative bodies can refer as well. But a citizen referendum is meant to overturn a law that’s been passed. An initiative is to pass a new law. That's an important distinction. It's important all the way through the process. In this case, the initiative was rejected. It was rejected because they had a problem with their application as well. But more importantly, the description which they did file in this case and which appears on all petitions right above where the signature lines are, so it's something that's read by each person who signs the petition at least it's supposed to be. And it's an important information. In that respect it was deficient in two different areas. It was inaccurate and misleading as far as what it was describing that the ballot measure would do.

Ted Simons: Who decides it was misleading?

Craig Tindall: Well, it's a matter of law. What the description said is that the ballot measure would reverse the tax increase and would require any future increases to be voted on by the voters. I'm paraphrasing. That's not exactly what it says but that's the essence of it. A ballot initiative, when passed, are prospective only. Our Supreme Court has ruled that they only operate in a prospective manner. They don't operate to reverse matters. This is a charter provision. This isn't just addressing an ordinance, it's addressing our fundamental law, the organic law of the city is our charter like a constitution is for a state. So they are attempting to change that by implementing a new requirement. But it wouldn't change existing law. It would not reverse as they said in their description what was already enacted, which would have been the sales tax increase. It also deals only with levies. A levy, with respect to our charter provision, is the initial imposition of the tax rate. It's not an adjust of the tax rate. So the fact that their 100 word description said that any future increases would be voted on or would have to be voted on by the voters is incorrect in two respects. Their 100 word statement was misleading and inaccurate.

Ted Simons: And also there was a deadline problem here. Before we go, I am curious about this because the election is coming up in August for this. Would be coming up in August for this. Yet the city council passed the sales tax increase in June and you're telling folks they need -- this has to be filed four months previous. How can you do that four months previous when it was passed in June and the elections are in August?

Craig Tindall: Well Ted, I am not telling this. That's what the Arizona constitution says. The constitution says that ballot propositions such as an initiative need to be presented four months prior to an election. As I said, statutes have been passed by the legislature to implement what the constitutional provisions are, and those statutes say for a municipal election the ballot measure being proposed goes on the next ensuing election. The next ensuing election for the city is the primary on August 28th. So when they turned in their ballot measures -- I forget the exact date. It's clear it was in July, so clearly not four months prior to August 24th.

Ted Simons: That sounds like a shut-down move there.

Craig Tindall: The courts have been clear that unlike referendums, who have a 30-day period of time, initiatives can be done at any point in time. What people, political committees fostering an initiative petition need to select the appropriate time to submit their petition.

Ted Simons: Alright, well it was good to have you on the show. I know it’s kind of deep weeds. And it was good to have you here. Thanks for joining us.